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ELCAllowedJudicial Review application arising from Notice of Motion dated 21st February 2024· [2024] KEELC 5116 (KLR)

Republic v County Executive Member Finance and Economic Planning, County Government of Bungoma & another; Ahmed (Exparte Applicant) (Miscellaneous Application E002 of 2024) [2024] KEELC 5116 (KLR)

Environment and Land Court

4 July 2024

ECE.C. CHERONO

2,008 words in judgment

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The bottom line

A Kenyan court ordered Bungoma County to pay Kshs 1.17 million via mandamus after it ignored a court judgment for nearly five years.

What this practically means

Executive summary

By a Notice of Motion dated 21st February 2024, the Ex-parte Applicant sought an order of mandamus directed to the County Government of Bungoma through the Respondents to satisfy the decree in Bungoma Chief Magistrate's Court ELC Case No. 22 of 2019, together with costs and interest. The applicant deponed that judgment was entered in his favour and a decree issued; certificates of order against Government were obtained and served; demand letters were sent; and the County Attorney requested bank details and IFMIS number in April 2022 but never paid. The applicant had obtained leave to file the substantive motion. The court framed two issues: whether the Respondents are under a public duty to satisfy the decree, and whether the applicant is entitled to the relief. Relying on Section 21 of the Government Proceedings Act, the court held that execution against government lies only against the accounting or chief officer, and that mandamus issues where a statutory duty is demanded and not performed. Noting the decretal sum of Kshs. 485,000 special damages, Kshs. 500,000 punitive damages, and taxed costs of Kshs. 184,715, and that the Respondents had acknowledged and requested payment details but not paid, the court found the Respondents had no plans to pay and allowed the motion. An order of mandamus was issued compelling payment of Kshs. 1,169,715, plus thrown away costs of Kshs. 30,000. Judgment read, dated and signed at Bungoma on 4th July 2024.

Key legal issues

Whether the Respondents are under a public duty to satisfy the decree

Holding

Yes. Judgment was entered in favour of the applicant with certificates of order against Government issued and served; the Respondents acknowledged and requested payment details but failed to pay.

Reasoning

The court applied Section 21 of the Government Proceedings Act, under which the accounting officer is statutorily bound to pay certified amounts. The applicant produced the decree, certificates of order against Government, demand letters, and correspondence from the County Attorney requesting bank details and IFMIS number, none of which resulted in payment.

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Whether the applicant is entitled to mandamus

Holding

Yes. Mandamus issues to compel performance of the public statutory duty to satisfy the decree where no other remedy exists.

Reasoning

Citing Republic v Kenya National Examination Council ex-parte Githenji, mandamus remedies the failure to perform a public duty where there is a specific legal right and no specific legal remedy. The decree remained unsatisfied despite demand and there was no stay, appeal or review pending, so the applicant had no other effective remedy.

p. 4

Legal principles established

An order of mandamus will compel the performance of a public duty imposed by law where the duty, despite demand, has not been performed; execution against government can only issue against the accounting or chief officer of the government or authority

Court orders

1.An order of Mandamus compelling the Respondents to pay the ex-parte Applicant the decretal sum of Kshs. 485,000 special damages plus interest, Kshs. 500,000 punitive damages plus interest and Kshs. 184,715 taxed costs, totalling Kshs. 1,169,715 awarded in Bungoma Chief Magistrate's Court ELC Case No. 22 of 2019
2.The Respondents shall pay the ex-parte Applicant thrown away costs of the Notice of Motion dated 21st February 2024 at Kshs. 30,000

Authorities

Legislation

Government Proceedings ActSection 21

Cases cited (1)

Republic v Kenya National Examination Council ex-parte Githenji & 9 Others
(1997) KLR

Jurisdiction invoked: Judicial review order of mandamus under leave granted on 21st February 2024, pursuant to Section 21 of the Government Proceedings Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Republic v County Executive Member Finance and Economic Planning, County Government of Bungoma & another; Ahmed (Exparte Applicant) (Miscellaneous Application E002 of 2024) [2024] KEELC 5116 (KLR)", Case Analysis (2024). Judicial Review application arising from Notice of Motion dated 21st February 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5116/eng@2024-07-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.